The Seventh Amendment to the United States Constitution, which is binding upon only federal courts, and many state constitutions provide a right to a trial by jury.  But the right to a jury trial, even when constitutionally guaranteed, may be waived, contractually before litigation is contemplated, or by a party or their lawyer’s actions or inaction during the court proceedings.  A recent Connecticut state appellate court decision addresses the latter type of waiver, which may occur by failing to object to the absence of a jury before or during the bench trial.

In Delahunty v. Targonski, 158 Conn. App. 741 (Ct. App. July 28, 2015), the plaintiff sued her neighbors for trespass. She did not claim the case for a jury trial. The defendants answered the complaint, asserted counterclaims against the plaintiff, and also asserted a third-party complaint.  The third-party defendants initially requested a jury trial on the third-party claim but later moved for a bench trial on that claim, which was granted by the Court with the agreement of the parties.  Prior to the bench trial, the defendants withdrew their third-party complaint.

A five-day bench trial resulted in a nominal $100 award for the plaintiff. The plaintiff appealed the judgment solely on the ground that she was denied her state constitutional right to a trial by jury.  She conceded that her claim was not preserved and sought review under a mechanism which allowed for appellate review of unpreserved constitutional errors if certain conditions were met.

The appellate court held that the plaintiff not only failed to preserve the error but also implicitly waived her constitutional right to a jury trial by failing to affirmatively claim a jury trial, failing to raise an objection at the time the third-party defendant moved for a bench trial, and failing to object to the absence of a jury at the start of or at any time during the bench trial.  Having implicitly waived her right to a jury trial, she failed to meet the requirements for seeking appellate review of her unpreserved constitutional claim.

Preservation Issue: It is better to affirmatively claim a right to a jury trial rather than rely on another party’s claim for a trial by jury.  In addition, to avoid implicitly waiving a constitutional right to a jury trial and appellate review of any error based upon the denial of that right, be sure to object to the absence of the jury before and during the bench trial.

Tip: This case demonstrates the dangers of failing to affirmatively assert a client’s rights to a trial by jury and failing to object to the absence of a jury before or during the trial which would give the trial court an opportunity to correct the error.  Although some courts may have a mechanism by which a party can seek appellate review of unpreserved constitutional errors, the appellate court may find that the appellant implicitly waived those constitutional rights precluding appellate review in any circumstances. Because implicit waiver could have a devastating effect on a party’s right to appellate review, it is important for trial counsel to be cognizant of and timely exercise their client’s rights and affirmatively object when those rights are not recognized by the trial court.